Request By:
Marvin Phipps, # 176844
David Gambrel
Doug Dowell
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Lincoln County Property Valuation Administrator David Gambrel violated the Kentucky Open Records Act in failing to issue a written response within three business days of receiving Marvin Phipps' request for a copy of the property tax bill for a specified piece of property as well as the status of same. Because the PVA does not possess any records which are responsive to Mr. Phipps' request, he ultimately discharged his duty under the Open Records Act in affirmatively indicating as much to Mr. Phipps in a written response, offering a credible explanation for the lack of such records, and providing him with the name and location of the custodial agency in accordance with KRS 61.872(4).
Upon receiving notification of Mr. Phipps' appeal from this office, the PVA advised this office as follows:
. This office does not have the records requested.
. The role of the Property Valuation Administrator is to prepare the tax roll.
. All property tax bills are mailed by the Lincoln County Sheriff and collected by same. Any unpaid bill for the 2007 tax year would be with the Lincoln County Sheriff's Office.
. Any delinquent tax bills for the previous years would be on file with the Lincoln County Court Clerk. The County Court Clerk and or [sic] the Lincoln County Attorney could provide those amounts.
. Mr. Phipps had previously filed an open records request with this office with which we complied in a timely fashion. In response to that request we informed him that the information provided to him - property card, deed book, map, title # for his late father's mobile home were "all of the records maintained by this office." As previously noted these records are parcel numbers 57-100 and 57-100 T02. 1
. Therefore, I submit that I have complied with the law since my office has supplied Mr. Phipps with all the records available from this office and he was made well aware of this fact with his previous request.
. I suggest that Mr. Phipps requested records which he knew or should have reasonably known this office does not maintain.
In closing, the PVA noted that Mr. Phipps should direct any requests or questions concerning property tax bills and payment thereof to "the Lincoln County Sheriff 104 N. 2nd St. Stanford, Ky. 40484 or the Lincoln County Clerk 102 E. Main St., Ste. 3, Stanford, Ky. 40484." Having ultimately advised Mr. Phipps in writing that he does not possess the records in question, explained why, and notified him of the name and location of the custodial agency in accordance with KRS 61.872(4), the PVA belatedly complied with the Open Records Act; nothing more is required.
As a public agency, the PVA is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days , excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision . An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added). In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount to [] substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181, p. 4; 04-ORD-163; 04-ORD-106.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). See 05-ORD-134, pp. 3-5. Although the burden on the agency to respond within three working days is, not infrequently, an onerous one, the only exceptions to this general rule is found at KRS 61.872(5), which the PVA did not invoke here. 02-ORD-165, p. 3.
As consistently recognized by the Attorney General, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Failing to respond in a timely and proper fashion, as the PVA initially did here, constitutes a clear violation of KRS 61.880(1). In short, compliance with these procedural guidelines is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public. Id. To avoid future violations, the PVA should issue a written response, within three business days of receiving a request, including a statement of the specific exception(s) authorizing the withholding of the records, and a brief explanation of how the exception(s) applies to the records withheld, if any. 2
That being said, a public agency cannot afford a requester access to records which it does not possess or which do not exist. 04-ORD-036, p. 5; 03ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency obviously cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right of inspection attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records for this reason, the Attorney General has consistently observed that a public agency's inability to produce records due to their apparent nonexistence is "tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205.
Accordingly, this office has consistently held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no responsive records exist (or are in the custody of the agency) as the Department ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On multiple occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. 3 To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as in this case, the agency denies having possession (or indicates that no such records exist) of the requested records, and the record does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83. As in the cited decisions, the record is devoid of evidence to raise the issue of good faith; rather, the PVA's explanation is entirely credible. However, the analysis does not end there.
Pursuant to KRS 61.872(4): "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " Here, the PVA affirmatively indicated that he does not possess or maintain the records being sought, briefly explained why any such records would be in the custody of either the Lincoln County Sheriff or the Lincoln County Clerk, and provided Mr. Phipps with contact information for that both agencies in accordance with KRS 61.872(4); nothing more is required. Assuming the PVA made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record indicates, the PVA cannot be said to have violated the Act in this regard. 05-ORD-109, p. 3.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Although this office has no reason to question the PVA's veracity regarding Mr. Phipps' prior written request, or in general, only the request dated January 14, 2008, is of record and may be considered by this office under KRS 61.880(2)(a). To the extent Mr. Phipps was already provided with any records in the custody of the PVA related to the specified property, the request at issue was redundant at a minimum. More importantly, a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 00-ORD-226; 05-ORD-021. In other words, the PVA was not statutorily required to honor a duplicative request; however, the record is not clear on this point nor may this office make any finding in this regard given our narrow scope of review and the limited evidence of record.
2 Although the PVA belatedly complied with this provision, a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant a denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3.
3 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-OMD-182; 04-ORD-032; 02-ORD-89.